CAFC Denies AD Petitioner Stay of Mandate in Case Nixing PMS Adjustments to Normal Value

The U.S. Court of Appeals for the Federal Circuit denied antidumping duty petitioner Welspun Tubular's request for a stay of its mandate during the company's appeal to the Supreme Court. In a March 23 order, Judges William Bryson and Todd Hughes rebuffed both of Welspun's arguments, which claimed that the company would suffer irreparable harm without a stay and that there's a reasonable shot the Supreme Court will reverse the appellate court's judgment (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

In its stay motion, Welspun Tubular said it plans to appeal to the Supreme Court over the question of whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value (see 2203220082). In the case, brought by Hyundai Steel Company, the Federal Circuit held that the statute -- namely, a portion of the 2015 Trade Preferences Extension Act -- only permits a PMS adjustment for constructed value (see 2112100039). The decision upheld a long line of Court of International Trade opinions finding the same.

Welspun also said that there's a fair chance a majority of the Supreme Court justices will reverse the Federal Circuit's opinion "in view of the substantial split between this Circuit and other circuits on the use of expressio unius reasoning to interpret statutory silence in the administrative law setting." Welspun argued that, by saying that such a PMS adjustment is not permitted given that it was not included in permitted adjustments to normal value, the Federal Circuit deviated from the Supreme Court's ruling in Chevron.

However, the court "did not decide this case based on the expressio unius canon" in making its decision, CAFC said. The analysis, in fact "does not rest solely, or even primarily," on this canon. What the court actually did was draw its conclusion about how Congress treated the normal value and constructed value sections of the law from the "structure of the statute" -- a mandatory tool of statutory interpretation employed when running a Chevron step one analysis.

Welspun also argued that it would suffer irreparable harm absent the stay since its entries would liquidate and it wouldn't be able to petition the Supreme Court. The Federal Circuit, though, said that "the issuance of the mandate will have no effect on Welspun's right to seek Supreme Court review in this case." The mandate won't result in the liquidation of the subject entries, as liquidation will only commence when the time for petitioning the Supreme Court passes without a petition being filed or when the Supreme Court either denies or enters judgment.